In re Interest of J.K. , 300 Neb. 510 ( 2018 )


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    IN RE INTEREST OF J.K.
    Cite as 
    300 Neb. 510
    In   re I nterest of J.K., a child
    under   18 years of age.
    State   of Nebraska, appellant,
    v. J.K., appellee.
    ___ N.W.2d ___
    Filed July 13, 2018.    No. S-17-982.
    1.	 Judges: Recusal: Appeal and Error. A motion to disqualify a trial
    judge on account of prejudice is addressed to the sound discretion of the
    trial court. An order overruling such a motion will be affirmed on appeal
    unless the record establishes bias or prejudice as a matter of law.
    2.	 Appeal and Error. Appellate review of a court’s use of inherent power
    is for an abuse of discretion.
    3.	 Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    4.	 Judges: Recusal: Waiver. A party is said to have waived his or her
    right to obtain a judge’s disqualification when the alleged basis for
    the disqualification has been known to the party for some time, but
    the objection is raised well after the judge has participated in the
    proceedings.
    5.	 Judges: Recusal: Appeal and Error. Once a case has been litigated,
    an appellate court will not disturb the denial of a motion to disqualify a
    judge and give litigants a second bite at the apple.
    6.	 Judges: Recusal: Time. The issue of judicial disqualification is timely
    if submitted at the earliest practicable opportunity after the disqualify-
    ing facts are discovered.
    7.	 Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct,
    a judge must recuse himself or herself from a case if the judge’s impar-
    tiality might reasonably be questioned.
    8.	 ____: ____. Under the Nebraska Revised Code of Judicial Conduct,
    such instances in which the judge’s impartiality might reasonably be
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    IN RE INTEREST OF J.K.
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    questioned specifically include where the judge has a personal bias or
    prejudice concerning a party or a party’s lawyer.
    9.	 Judges: Recusal: Presumptions. A defendant seeking to disqualify a
    judge on the basis of bias or prejudice bears the heavy burden of over-
    coming the presumption of judicial impartiality.
    10.	 Judges: Recusal. In evaluating a trial judge’s alleged bias, the ques-
    tion is whether a reasonable person who knew the circumstances of
    the case would question the judge’s impartiality under an objective
    standard of reasonableness, even though no actual bias or prejudice
    was shown.
    11.	 Judges: Recusal: Judgments. Judicial rulings alone almost never con-
    stitute a valid basis for a bias or partiality motion directed to a
    trial judge.
    12.	 Judges: Recusal. Opinions formed by the judge on the basis of facts
    introduced or events occurring in the course of the current proceedings,
    or of prior proceedings, do not constitute a basis for a bias or partiality
    motion unless they display a deep-seated favoritism or antagonism that
    would make fair judgment impossible.
    13.	 Judges: Witnesses: Evidence. Comments by the judge presiding over a
    matter are clearly not evidence, because a judge may not assume the role
    of a witness.
    14.	 Trial: Judges: Witnesses: Rules of Evidence. Neb. Rev. Stat. § 27-605
    (Reissue 2016) was drafted as a broad rule of incompetency designed to
    prevent a judge presiding at a trial from testifying as a witness in that
    trial on any matter whatsoever.
    15.	 Trial: Judges: Witnesses. A judge’s taking the role of a witness in a
    trial before him or her is manifestly inconsistent with the judge’s cus-
    tomary role of impartiality.
    Appeal from the County Court for Washington County: C.
    M atthew Samuelson, Judge. Exception overruled.
    M. Scott Vander Schaaf, Washington County Attorney, and,
    on brief, Emily A. Beamis for appellant.
    Nicholas E. Wurth, of Law Offices of Nicholas E. Wurth,
    P.C., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ., and Dobrovolny, District Judge.
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    IN RE INTEREST OF J.K.
    Cite as 
    300 Neb. 510
    Funke, J.
    In a delinquency proceeding brought under the Nebraska
    Juvenile Code,1 the county court for Washington County, sit-
    ting as a juvenile court, found the State of Nebraska failed to
    prove the allegations against the appellee, J.K., and dismissed
    the proceedings. The State filed this exception proceeding chal-
    lenging the court’s rulings on a motion to recuse and a motion
    to join the case with that of another minor. Because we find the
    State’s assignments of error to be without merit, we overrule
    its exception.
    I. BACKGROUND
    In August 2015, J.K. and J.G., both male minors, were
    arrested by the Blair Police Department. The State filed crimi-
    nal complaints against J.K. and J.G. under separate Washington
    County Court dockets. While J.K. and J.G. made their initial
    appearances together, J.K. had an individual preliminary hear-
    ing before the county court judge.
    At J.K.’s preliminary hearing, the State called as a witness
    a Blair Police Department detective. The detective testified
    that Y.C., a female minor, reported being sexually assaulted
    by J.K. and J.G. on August 15, 2015. The detective stated that
    Y.C. had reported voluntarily going to the parking lot of her
    apartment building to spend time with J.K. and J.G., declin-
    ing numerous sexual advances by J.K. and J.G. outside of the
    apartment building, J.K. and J.G. forcibly exposing and mak-
    ing contact with her breasts outside the apartment building,
    J.K. and J.G. taking her belongings into the apartment com-
    plex’s laundry room; J.K. forcing her into the apartment com-
    plex’s laundry room, J.K. and J.G. both digitally penetrating
    her vagina, and J.G. forcing her to have vaginal intercourse
    with him.
    On cross-examination, the detective stated that while Y.C.
    had initially only told officers that she went home to her
    1
    See Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Reissue 2008 & Cum. Supp.
    2014).
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    apartment after the assault, Y.C. subsequently reported volun-
    tarily going to J.K.’s apartment shortly after she went home,
    to recover the cell phone case he had stolen from her. The
    detective also provided additional testimony about the events
    of the night, suggesting Y.C. had an existing relationship with
    J.K. and J.G.
    After presenting the evidence, the parties made arguments
    regarding whether the State met its burden of establishing
    probable cause for the alleged crimes. The judge, on the
    record, engaged in discussion with J.K.’s counsel regarding
    his argument, Y.C.’s credibility, and whether Y.C.’s allegation
    alone amounted to probable cause. During this discussion, the
    court made the following statement:
    One of the concerns — the biggest concern I have so far
    is why would an alleged victim go to the alleged perpetra-
    tor’s residence within an hour, or two, or five minutes, or
    whatever the case may be, within a short period of time,
    knock on his door, even if it’s to try to get my [sic] cell
    phone case. I find that a little unusual.
    Nevertheless, the county court ruled there was probable
    cause to proceed with the felony counts against J.K. and bound
    the matter over to the district court for Washington County. In
    May 2016, the district court sustained J.K.’s motion to suppress
    J.K.’s statement to law enforcement made on August 17, 2015,
    and then ordered the matter transferred to juvenile court.
    The State then filed a petition against J.K. in juvenile court,
    alleging first degree sexual assault and false imprisonment,
    under § 43-247(2). The same county judge who heard the pre-
    liminary hearing was assigned to sit as the judge for the juve-
    nile court proceedings.
    During a preadjudication hearing, J.K.’s attorney requested
    a continuance to file a motion to suppress statements made
    and evidence collected from J.K. on August 17, 2015. On
    November 3, 2016, the scheduled hearing on the motion to
    suppress was continued at the State’s request to allow the State
    to file a motion to recuse the judge.
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    Before considering the motion to recuse, the court requested
    briefs from the parties and heard arguments on the issue of
    whether or not the juvenile court was bound by the district
    court’s order to suppress statements J.K. had made on August
    17, 2015. The court ultimately concluded it was not bound by
    the district court’s order to suppress, and the matter proceeded
    to a hearing on the State’s motion to recuse.
    The motion to recuse asserted that the judge should be
    recused for bias or prejudice, under Neb. Rev. Code of Judicial
    Conduct § 5-302.11. The State submitted an affidavit, authored
    by the county attorney, describing the alleged biased or partial
    statements made by the judge during an off-the-record con-
    versation with both parties’ counsel before the November 3,
    2016, hearing, including that the judge had read the district
    court’s order to suppress; absent “new” evidence, the court
    would make the exact same finding as the district court; and,
    in response to the State’s inquiry regarding the court’s abil-
    ity to make its ruling without evidence, the judge stated that
    he “knew the law and would follow it.” The State also cited
    the above-quoted statement by the judge from the preliminary
    hearing about Y.C.’s credibility, which had been published in a
    local newspaper.
    At the hearing on the motion to recuse, the State rested on
    its affidavit. The judge then called J.K.’s counsel as a witness,
    who testified that the statements the county attorney attributed
    to the judge were not a verbatim account of the judge’s state-
    ments. The judge then, while issuing his ruling on the motion,
    stated from the bench, regarding the off-the-record conversa-
    tion, “[T]here’s several of the paragraphs in your affidavit
    that the Court strongly disagrees with as to the accuracy” and
    “I don’t recall saying things that you attribute to me” and,
    regarding the statement at the preliminary hearing, “It was
    certainly something that I heard during the course of the pre-
    liminary hearing.” Ultimately, the court overruled the motion
    for recusal.
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    IN RE INTEREST OF J.K.
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    In March 2017, the court entered an order overruling J.K.’s
    motion to suppress and set the matter for adjudication in
    June 2017. In April 2017, the State filed a motion for joinder
    regarding the petitions against J.K. and J.G. and an unrelated
    motion for continuance of J.K.’s adjudication.
    The matters of joinder and continuation of the adjudication
    for J.K. came before the court, at which time J.K. and J.G.
    resisted the motion for joinder. The court denied the motion
    for joinder, finding that the cases were at differing procedural
    postures, and continued J.K.’s adjudication to July 2017.
    After the adjudication hearing, the court ruled the State failed
    to prove its case beyond a reasonable doubt and dismissed the
    petition against J.K. The State appealed. We removed the case
    to our docket on our own motion pursuant to our authority to
    regulate the caseloads of the Nebraska Court of Appeals and
    this court.2
    II. ASSIGNMENTS OF ERROR
    The State assigns, restated, that the juvenile court erred
    when (1) the presiding judge failed to recuse himself after
    evidence was presented showing bias and partiality and (2) it
    failed to join J.K.’s and J.G.’s cases.
    III. STANDARD OF REVIEW
    [1] A motion to disqualify a trial judge on account of preju-
    dice is addressed to the sound discretion of the trial court.3
    An order overruling such a motion will be affirmed on appeal
    unless the record establishes bias or prejudice as a matter
    of law.4
    [2,3] Appellate review of a court’s use of inherent power
    is for an abuse of discretion.5 An abuse of discretion occurs
    2
    See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
    3
    In re Interest of Kendra M. et al., 
    283 Neb. 1014
    , 
    814 N.W.2d 747
    (2012).
    4
    Id.
    5
    Lombardo v. Sedlacek, 
    299 Neb. 400
    , 
    908 N.W.2d 630
    (2018).
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    when a trial court’s decision is based upon reasons that are
    untenable or unreasonable or if its action is clearly against
    justice or conscience, reason, and evidence.6
    IV. ANALYSIS
    1. Court’s Denial of Motion for
    R ecusal Was Not Error
    The State argues the juvenile judge abused his discre-
    tion in failing to recuse himself, under Neb. Rev. Code of
    Judicial Conduct § 5-302.10(A), as well as § 5-302.11. Section
    5-302.10(A) states that “[a] judge shall not make any public
    statement that might reasonably be expected to affect the out-
    come or impair the fairness of a matter pending or impend-
    ing in any court, or make any nonpublic statement that might
    substantially interfere with a fair trial or hearing.” Section
    5-302.11(A) states that “[a] judge shall disqualify himself or
    herself in any proceeding in which the judge’s impartiality
    might reasonably be questioned . . . .”
    In support of its argument, the State identifies three sepa-
    rate actions of the judge that it argues violated these rules.
    First, the State asserts that the judge’s on-the-record state-
    ment about Y.C.’s credibility at a preliminary hearing vio-
    lated § 5-302.10(A) as an improper public comment and vio-
    lated § 5-302.11 by showing bias and partiality. Second, the
    State asserts that the judge’s off-the-record comments about
    the way it would rule on J.K.’s motion to suppress violated
    § 5-302.10(A) as an improper nonpublic comment and violated
    § 5-302.11 by showing bias and partiality. Finally, the State
    argues that the judge’s conduct at the motion for recusal hear-
    ing violated § 5-302.11 by showing bias and partiality.
    J.K. contends that the State waived its argument that the
    judge acted with bias and partiality during the motion for
    recusal hearing because it never raised the issue to the trial
    court. J.K. also contends that the on-the-record statement dur-
    ing the preliminary proceeding was based on the evidence
    6
    
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    presented and was, therefore, a judicial, not prejudicial, state-
    ment. Finally, J.K. argues that no matter what the judge may
    have stated in the off-the-record conversation, the judge clearly
    stated that he would follow the law.
    (a) State Failed to Present Certain Basis
    for Disqualification to Juvenile Court
    The State never alleged, either in its motion to recuse
    or at the hearing on its motion, that the judge violated
    § 5-302.10(A). Instead, the only basis for recusal presented
    was the alleged violation of § 5-302.11. Further, despite
    reasserting its motion for recusal after the hearing, the State
    did not add the court’s conduct during the hearing on the
    motion for recusal as an additional basis for disqualification.
    Accordingly, the State failed to present either of these issues
    to the juvenile court for consideration.
    [4-6] A party is said to have waived his or her right to
    obtain a judge’s disqualification when the alleged basis for the
    disqualification has been known to the party for some time,
    but the objection is raised well after the judge has participated
    in the proceedings.7 Once a case has been litigated, an appel-
    late court will not disturb the denial of a motion to disqualify
    a judge and give litigants a second bite at the apple.8 The
    issue of judicial disqualification is timely if submitted at the
    earliest practicable opportunity after the disqualifying facts
    are discovered.9
    Because the State failed to timely submit these issue to the
    juvenile court, it waived its ability to obtain disqualification on
    either basis.
    (b) Principles of Law Regarding § 5-302.11
    [7-9] Under § 5-302.11 of the Nebraska Revised Code of
    Judicial Conduct, a judge must recuse himself or herself from
    7
    State v. Buttercase, 
    296 Neb. 304
    , 
    893 N.W.2d 430
    (2017).
    8
    Id.
    9
    
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    a case if the judge’s impartiality might reasonably be ques-
    tioned. Such instances in which the judge’s impartiality might
    reasonably be questioned specifically include where the judge
    has a personal bias or prejudice concerning a party or a party’s
    lawyer.10 A defendant seeking to disqualify a judge on the basis
    of bias or prejudice bears the heavy burden of overcoming the
    presumption of judicial impartiality.11
    [10,11] Under the standard we have articulated for evalu-
    ating a trial judge’s alleged bias, the question is whether a
    reasonable person who knew the circumstances of the case
    would question the judge’s impartiality under an objective
    standard of reasonableness, even though no actual bias or
    prejudice was shown.12 Judicial rulings alone almost never
    constitute a valid basis for a bias or partiality motion directed
    to a trial judge.13
    (c) Judge’s Statement at Preliminary Hearing
    Did Not Warrant Disqualification
    We begin by noting that the State timely submitted this
    argument for the judge’s disqualification. While this incident
    occurred over a year before the motion to recuse, the mat-
    ter had only recently been assigned to the judge sitting as a
    juvenile judge, and it was made before the judge decided any
    substantial issues in the juvenile proceedings.
    As mentioned above, judicial rulings almost never constitute
    a valid basis for a partiality motion. As the U.S. Supreme Court
    stated in Liteky v. United States14:
    The judge who presides at a trial may, upon completion
    of the evidence, be exceedingly ill disposed towards the
    10
    Id.; § 5-302.11.
    11
    Buttercase, supra note 7.
    12
    
    Id. See, also,
    Huber v. Rohrig, 
    280 Neb. 868
    , 
    791 N.W.2d 590
    (2010).
    13
    Buttercase, supra note 7. Accord Liteky v. United States, 
    510 U.S. 540
    ,
    
    114 S. Ct. 1147
    , 
    127 L. Ed. 2d 474
    (1994).
    14
    Liteky, supra note 
    13, 510 U.S. at 550-51
    .
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    defendant, who has been shown to be a thoroughly rep-
    rehensible person. But the judge is not thereby recusable
    for bias or prejudice, since his knowledge and the opinion
    it produced were properly and necessarily acquired in the
    course of the proceedings, and are indeed sometimes (as
    in a bench trial) necessary to completion of the judge’s
    task. . . . “. . . If the judge did not form judgments of the
    actors in those court-house dramas called trials, he could
    never render decisions.”
    [12] Therefore, “opinions formed by the judge on the basis
    of facts introduced or events occurring in the course of the
    current proceedings, or of prior proceedings,”15 do not “consti-
    tute a basis for a bias or partiality motion unless they display
    a deep-seated favoritism or antagonism that would make fair
    judgment impossible.”16
    The record shows that the judge’s comment, regarding a
    determination of Y.C.’s credibility, was based solely on the
    evidence presented during the hearing, which expressed nei-
    ther favoritism nor antagonism for either side. As a result, the
    judge’s impartiality could not be questioned by a reasonable
    person under an objective standard of reasonableness based on
    this comment.
    (d) Evidence of Judge’s Off-the-Record
    Comment Did Not Warrant
    Disqualification
    The only evidence presented by the State regarding the
    judge’s off-the-record comments was an affidavit from the
    county attorney. However, J.K.’s counsel testified that the affi-
    davit did not state the judge’s comments verbatim. The State
    could have called J.K’s counsel to testify or request to cross-
    examine J.K.’s counsel to present further evidence of the com-
    ments but did not do so.
    15
    
    Id., 510 U.S.
    at 555.
    16
    
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    [13] We note that the judge made statements from the bench
    during the hearing regarding the content of his off-the-record
    comments. Though we do not comment on the procedure used
    by the judge, we do note that comments by a judge presiding
    over a matter are clearly not evidence, because a judge may not
    assume the role of a witness.17
    [14,15] Neb. Rev. Stat. § 27-605 (Reissue 2016) provides:
    “The judge presiding at the trial may not testify in that trial as
    a witness. No objection need be made in order to preserve the
    point.” This rule was drafted as a broad rule of incompetency
    designed to prevent a judge presiding at a trial from testifying
    as a witness in that trial on any matter whatsoever.18 This pro-
    hibition applies not only to formal testimony but also to when-
    ever the judge assumes the role of a witness.19 A judge’s taking
    the role of a witness in a trial before him or her is manifestly
    inconsistent with the judge’s customary role of impartiality.20
    Therefore, we do not consider statements made by the court in
    such capacity.21
    Nevertheless, the context of the judge’s alleged comment
    about the way the court would rule on J.K.’s motion to sup-
    press does not support a finding of prejudice by the judge.
    First, the judge requested that the parties brief and argue the
    issue of whether he was bound by the district court’s order to
    suppress. This indicates that the judge’s alleged statement may
    have related to a belief that collateral estoppel required him to
    enter an identical order, rather than providing an indication of
    prejudicial reliance on extraneous material. Second, the judge’s
    alleged comment that he would follow the law in making his
    order rebuts any allegation that he intended to rule on the
    basis of bias or partiality. Further, the State has not identified
    17
    State v. Baird, 
    259 Neb. 245
    , 
    609 N.W.2d 349
    (2000).
    18
    State v. Sims, 
    272 Neb. 811
    , 
    725 N.W.2d 175
    (2006).
    19
    Baird, supra note 17.
    20
    
    Id. 21 Id.
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    anything in the judge’s ruling on the motion to suppress that
    would indicate that the judge in fact relied on any evidence that
    was not presented to the court.22
    Noting the strong presumption of impartiality, we conclude
    that a reasonable person who knew the circumstances of the
    case would not question the judge’s impartiality under an
    objective standard of reasonableness. Therefore, this assign-
    ment of error is without merit.
    2. Court Did Not A buse Its Discretion
    in Denying Motion for Joinder
    The State argues that J.K.’s and J.G.’s proceedings were
    joinable under Neb. Rev. Stat. § 29-2002(2) (Reissue 2016)
    and that the court abused its discretion in denying its motion
    without engaging in the statutory analysis for joinder. J.K.
    contends that joinder is not permissible in juvenile proceed-
    ings because the juvenile code does not provide for such and
    the rules of criminal procedure are not applicable in juvenile
    proceedings, which are civil in nature. J.K. also argues that if
    joinder is permissible in juvenile proceedings, the motion was
    properly denied because of the differing procedural postures of
    the cases and the State’s long delay in requesting joinder.
    At the time of the State’s motion for joinder, J.K.’s proceed-
    ings had been pending in the juvenile court for over a year
    and the adjudicatory hearing had been scheduled, absent a
    later motion to continue by the State. The State had not raised
    the issue of joinder, though without filing such a motion, until
    the hearing where the date for the adjudicatory hearing was
    initially set. Conversely, J.G.’s proceedings still had a pending
    motion to suppress J.G.’s statements before it could reach the
    adjudicatory stage.
    The court determined that ordering the cases joined at that
    point in J.K.’s and J.G.’s proceedings would have caused
    excessive and unnecessary delay in adjudicating J.K. We need
    22
    Gibilisco v. Gibilisco, 
    263 Neb. 27
    , 
    637 N.W.2d 898
    (2002).
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    not decide whether J.K. correctly argues that the court lacked
    authority to join matters for adjudication, because here, the
    court denied the State’s motion for joinder. Even if the court
    had such authority, its denial of joinder under these circum-
    stances would not have been an abuse of discretion.
    V. CONCLUSION
    For the preceding reasons, we overrule the State’s exception.
    Exception overruled.
    Heavican, C.J., concurring.
    I concur with the decision of the court, but write separately
    to caution that a trial court should refrain as much as possible
    from calling and questioning witnesses on its own motion,
    particularly where that witness is one of the attorneys in the
    underlying litigation and especially where the trial court then
    subjected counsel to a leading question.
    Both Nebraska and federal law allow a trial court to call a
    witness on its own motion,1 the usual purpose of such interro-
    gation being “to develop the truth.”2 But this right of examina-
    tion should be “‘“‘sparingly exercised.’”’”3 In this instance,
    I observe that although the State objected to the trial court’s
    examination of counsel, it did not assign that action as error on
    appeal. As such, I join the opinion of the court.
    1
    Neb. Rev. Stat. § 27-614 (Reissue 2016); Fed. R. Evid. 614.
    2
    State v. Fix, 
    219 Neb. 674
    , 677, 
    365 N.W.2d 471
    , 473 (1985).
    3
    State v. Brehmer, 
    211 Neb. 29
    , 44, 
    317 N.W.2d 885
    , 894 (1982), disap­
    proved on other grounds, State v. Dominguez, 
    290 Neb. 477
    , 
    860 N.W.2d 732
    (2015).
    Cassel, J., concurring.
    I join the court’s opinion and write separately only to suggest
    that the purported absence of any statutory basis for joinder of
    adjudication proceedings in juvenile law violation cases deserves
    the attention of the Legislature.